Given the current rates of exchange for sterling, it is
increasingly important for defendants to know in which currency the
judgment sum will be expressed and which exchange rates should be
used. The White Book notes that a judgment can be given in a
foreign currency or its sterling equivalent at the time of payment.
Prior caselaw has established that damages should be calculated
"in the currency in which the loss was felt" by the
claimant (see The Canadian Transport ).
Here, the judge had identified the recoverable sum in the main
judgment as USD 11 million approximately, and the defendant sought
an order that the judgment be expressed in sterling and should be
calculated in accordance with the exchange rates set out in the
claimant's own evidence at trial. Coulson J agreed, on the
basis that all the relevant sums paid in the case, and all the
figures mentioned in contemporaneous documents, had been in
A further issue was the applicable rate of interest. The court
will ask what rate of interest the claimant would have had to pay
in order to borrow money to replace the money which he has been
kept out of. In this case, the claimant sought to recover sub-prime
borrowing rates ie the rate applicable to a small hypothetical
company "whose only business was a development of a new resort
in the Caribbean, seeking to raise funds in sterling and in the UK
and which could not offer security" (namely, around 12-15%).
The judge held that such a comparison was "artificial and
unhelpful" because "The claimant did not borrow money
and, on the balance of probabilities, I find that it would never
have been lent any money because of its complete lack of financial
security and credit-worthiness... It would be wholly wrong in
principle for the claimant now to take advantage of their own
sub-sub-prime status to increase the recoverable interest
The defendant was ordered to pay 1.5% above base for the
Elkamet v Saint-Gobain: Whether party benefiting from
a costs order should be compensated for exchange rate
Recent movements in the sterling exchange rate were also the
subject of this case. A novel point was raised by the party which
was entitled to its costs in this action. It argued that, since it
had had to exchange euros into pounds in order to pay its
solicitors' bills, it should be compensated for losses
resulting from the decline in the exchange rate between the pound
and the euro since 23rd June 2016.
Arnold J agreed with this argument in principle: "If one
accepts, as I do, that in principle the court has power to make an
order for damages or costs in a foreign currency, then it seems to
me to follow as a matter of logic that the court ought to have
power, if it decides to make an order in sterling, to compensate
for any exchange rate loss."
However, the judge also recognised the practical difficulties
that this principle might raise. For example, no court will be able
to predict what the exchange rate will be at the date of payment
(which is the relevant date).
Here, the judge calculated the exchange rate loss as at the day
before's exchange rate, and then rounded this figure down (from
£23,555 to £20,000) to recognise the possibility that
by the date of payment, the exchange rate might have appreciated
Agents Mutual v James: Whether an application to court
can be amended
The claimant applied, by notice, for summary judgment on the
defendant's counterclaim. After judgment on the scope of the
application, the claimant sought to amend his application, to add
in further grounds. The issue to be decided was therefore whether a
party can simply amend its application to the court or whether this
instead amounts to a further, free-standing, application.
Ordinarily, this would not matter, but in this case, a deadline had
been set to bring the application for summary judgment, and that
deadline had since passed (so that, if this is a new application,
it would be subject to a stay).
There is no prior caselaw on whether an application notice under
the CPR may be amended once issued.
Master Matthews held that the court's general case
management power under CPR r3.1(2)(m) allows the court to permit an
amendment: "In my judgment it will often further the
overriding objective if the court allows all issues between the
parties about summary judgment to be decided at the same time,
rather than require the applicant to issue a fresh
application". However, on the facts of the case, Master
Matthews did not think it would be right to give permission to
Settling contentious claims without prejudice to liability is an everyday occurrence for most Insurers. The vast majority of claims which are subject to litigation are settled at some point in the course of the proceedings, and the settlement is usually expressed to be without admission of liability.
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